The History of Conservation Legislation in the UK

This page is based on text taken from an article on the Isle of Skye formerly found on Gael-Net. The original article is no longer online and we don't know who the author was. Note that this is a historical article. A lot has changed since it was written, and it doesn't reflect the current situation.

In particular this text refers to the Nature Conservancy Council. Note that the powers and duties referred to, where they remain current, are now distributed amongst various other statutory bodies. The NCC no longer exists.

The government's approach to nature conservation in Great Britain
has, since the establishment of the Nature Conservancy in 1949, been to identify and
protect prime areas of scientific interest as representative of the remaining natural and
semi-natural biological, geological and physiographical areas in the country. The National
Parks and Access to the Countryside Act 1949 enshrined the philosophy of habitat
conservation through site designation; it did not incorporate earlier ideas of integrating
nature conservation within the broader framework of emerging rural policy.

From the 1950s to the 1980s a sectoral approach to rural land use
policy was followed with each major land use - agriculture, forestry and nature
conservation - following independent paths. The major thrust of government policy was to
increase output and productivity of forestry and agriculture by giving incentives in the
form of grants and subsidies to promote efficiency and this caused a loss of many areas of
high nature conservation value. This loss was exacerbated by the limited remit of the
Nature Conservancy Council in relation to other land use policies.

Nature Conservancy Policy 1950-1980
The principal function of the Nature Conservancy under the 1949 Act was to
identify and establish by agreement, lease or purchase a series of National Nature
Reserves. These reserves served the dual function of protecting the most important
habitats and of providing an opportunity for detailed scientific research. In addition, a
national network of Sites of Special Scientific Interest (SSSIs)
was designated. Unlike the reserves where nature conservation is generally the primary
land use, the conservation interest defined by the SSSIs has to co-exist with other land
uses; the assumption was that agriculture and forestry were compatible with nature
conservation objectives.

The main threat to the conservation interest was perceived to be
land development in the sense in which that term was used in the Town and Country Planning
(Scotland) Act 1947. In consequence, local planning authorities were only required to
consult the Nature Conservancy before determining a proposal for development affecting a
National Nature Reserve or SSSI. No such consultation was considered necessary in respect
of proposals for agricultural improvement and afforestation. These activities were
presumed to be environmentally benign. Landowners were perceived to be the true custodians
of the countryside and trust was placed in them to maintain the conservation value of the
countryside. It was not even thought necessary to notify landowners of the conservation
interest in an SSSI. Such notions of `inherent stewardship' remained unchallenged until
the late 1960s.

The relationship between conservation and agriculture, which
depended on the continuation of traditional land use practices, eroded as government
policy encouraged increased output through the use of grants and subsidies which at that
time took no account of nature conservation objectives. The integrity of the extensive
SSSI system (covering 1,366,067 ha or 6% of Britain's land surface by the early 1980s)
weakened as land use in rural areas intensified. The Nature Conservancy Council was in a
difficult position, unable to exert much influence on the rapidly developing farming and
forestry sectors except in National Nature Reserves. Major destruction of the conservation
interest in SSSIs followed as they were largely unprotected. SSSIs in areas of intensive
production became fragile `habitat islands' increasingly reliant on the species reservoir
contained within their boundaries.

From the 1970s it became increasingly obvious that significant
habitat loss was taking place. Figures gathered by the Nature Conservancy Council
highlighted the erosion of the SSSIs, particularly in lowland areas. This forced a
reappraisal of policies for nature conservation. There were calls for the development
control system to be extended to cover all forestry and agricultural activities in
designated areas as well as in the wider countryside. Such radical proposals were not
favoured by those land-owning interests which had a deep-rooted belief in their role as
stewards and their traditional freedom to manage land without interference.

The Introduction of the Wildlife and Countryside Act 1981
Faced with pressure for reform the Conservative Government in 1981 introduced legislation
to address the problem of species protection and habitat loss. The Wildlife and
Countryside Bill was initially drafted in consultation with the farming lobby without the
involvement of the Nature Conservancy Council or the wider conservation movement and
contained little further habitat protection except for a limited number of `Super SSSIs'.
Furthermore, the Bill made no proposals to tackle the principal cause of habitat loss,
namely the production oriented agriculture and forestry sectors. The Bill created an
uproar amongst the conservation lobby and a large number of amendments were proposed.

Part II of the Wildlife and Countryside Act 1981 which deals with
habitats retains the central philosophy of the 1949 Act. The conservation of areas with a
specific scientific interest continues to rest upon the belief that the future of the
countryside "lies in the natural feel for it possessed by those who live and work in
it". The Nature Conservancy Council has no means of prohibiting land use change.
However, the 1981 Act through a combination of regulation and financial incentives places
the Council in a stronger position to persuade landowners not to proceed with land use
change which would damage nature conservation interests. The 1981 Act also strengthens
species protection, bringing the legislation for bird protection into line with the recent
EEC Directives.

Designation of SSSIs
The key to the site safeguard provisions of the 1981 Act rests upon a system of reciprocal
notification. SSSIs are notified under Section 28 of the Act. Notification is a statement
of scientific value which does not carry prohibitive powers. It depends on owners or
occupiers (landholders) voluntarily consulting with Nature Conservancy Council over
operations likely to damage the site.

Notification is to landholder, local planning authorities,
statutory undertakers, and the Secretary of State. Landholders are allowed a period of
four months within which they can object to the proposed notification. As notification is
on scientific grounds, this is the only basis on which they can object. Other issues, such
as loss of monetary value, could be dealt with on a compensatory basis at a later stage.

During this pre-notification period of consultation, the site does
not have SSSI status, but is known as a Proposed SSSI (PSSSI). An important loophole in the
original legislation was that, during the (then) three-month consultation period, a PSSSI
had no protection under the Act, and some landowners took advantage of this to destroy the
interest. The 1985 Amendment to the Act closed this loophole by extending protection under
Section 28 to PSSSIs.

Potentially Damaging Operations (PDOs)
The landholder is provided, in addition to a statement of the scientific interest in the
site, with a list of "potentially damaging operations" (PDOs) thought likely to
harm the interest. These might include drainage work, felling, variation of grazing,
spraying of pesticides, and are specific to individual sites, though drawn from a standard
list. The statutory body must be given notice of any PDO. In turn, they have four months
in which to consult over the PDO, during which the landholder is constrained from
proceeding with the operation. The possible outcomes are:

the statutory body gives consent to the PDO (possibly after
modification following consultation) because it believes it not to be damaging to the
interest in this instance;

the statutory body reaches a management agreement with the
landholder under which the PDO is not carried out, and payments are made for profits
foregone;

the statutory body fails to reach an agreement with the landholder,
and the PDO may be carried out at the end of the four months, possibly damaging the
interest.

This process embodies the so-called "voluntary
principle" on which the Act is based and on which great emphasis was placed during
its drafting.
The granting of planning permission on an application (though not a General Order)
effectively authorises a PDO without a requirement for consent from the statutory body.

If the PDO is carried out by or with permission of the landholder
without consent, then Section 28 allows for a fine on summary conviction. This was
originally set at 500, but was increased to 1000 under the Crime Penalties Etc (Increase)
Order 1984 No. 447. The Act set the maximum level of fine under Section 29 at "the
statutory limit" (2000) on summary conviction. The fine on conviction on indictment
is unlimited.

Penalties for damaging SSSIs
Where, however, the Secretary of State believes that an SSSI, or any other area of land,
is of national or international significance, additional powers may be brought into
effect. The Secretary of State may, under Section 29 of the Act, issue a Nature
Conservation Order (NCO) which gives an SSSI, PSSSI, or any other land considered to be of
sufficient importance, protection over and above that afforded by notification under
Section 28. Principally, additional protection takes the form of a prohibition on anyone
carrying out a PDO, fines on conviction, and a potential chain of events which could lead
to a compulsion to restore damaged land, or to a Compulsory Purchase Order (CPO).

To put penalties under the Act in perspective, any SSSI which does
not come under Section 29 is worth only £1000 in terms of the maximum fine which can be
levied against any instance of damage. A Tree Preservation Order is enforced by possible
fines of up to £20,000, and damage to a listed building (equivalent to SSSIs in the built
environment) can result in a fine which takes into account the benefits gained by the
offender as a result of the damage, or 12 months imprisonment.

The Act makes further provision for the protection of SSSIs, or
land under and Nature Conservation Order, by requiring that the Ministry of Agriculture
(MAFF in England or DAFS in Scotland) take into account conservation requirements when
considering applications for grant aid.

The Act enables the Nature Conservancy Council to provide grants
to individuals or organisations for doing anything conducive to or fostering the
understanding of nature conservation. The Nature Conservancy Council have used this
facility to provide grants to Non-Government Organisations for the purchase of SSSIs so,
in theory, ensuring a better level of safeguard than if they were not in direct
conservation ownership.

Management Agreements
Strictly outside the scope of the 1981 Act, but relevant to the safeguard of SSSIs,
management agreements, under Section 15 of the Countryside Act 1968, are usually used to
provide compensation in relation to a PDO notice (this payment for not doing something can
be regarded as a negative agreement). They can also be used at any time to provide payment
for positive maintenance or enhancement of the scientific interest. Moreover, compensation
can be made for value lost as a result of the notification.

Marine and Littoral Designations
SSSIs can only extend to mean low water mark in England and Wales, and to low water spring
tide in Scotland. Areas offshore and, of example, in estuaries are beyond the scope of the
provisions of the 1981 Act (except for the weak and little-used Marine Nature Reserve
provisions). Both the Nature Conservancy Council and Non-Government Organisations
criticised this loophole, and the Nature Conservancy Council has called for powers to
extend the seaward limits of SSSIs. Since then this has to some extent been addressed by the introduction of European designations including SACs and SPAs.

Selection of Sites of Special Scientific
Interest
The procedure for selecting an SSSI is based on a rigourous definition of what constitutes
"special scientific interest." This was originally described in "A Nature
Conservation Review" (Ratcliffe, 1977) and the rationale was substantially revised in
recent guidelines ( Nature Conservancy Council, 1989). This clearly states the objective
of the SSSI series:

"to form a national network of areas representing in total
those parts of Great Britain in which the features of nature, and especially those of
greatest value to wildlife conservation, are most highly concentrated or of highest
quality."..."each site represents a significant fragment of the much-depleted
resource of wild nature now remaining in this country."

The features of interest in earth science include rock types,
crustal structures, landforms and erosion products, while in life science the features are
species or lifeforms, and habitats or ecosystems within which the species live. Some
species, for example, the Pipewort and the grey seal can be conserved within specific
sites. Others, like the otter, golden eagle and corncrake require some degree of
protection wherever they occur.

Geological Conservation
Following the Nature Conservation Review, "A Geological Conservation Review" was
instituted by the Nature Conservancy Council. While the
Nature Conservation Review supports the biological SSSIs, the Geological Conservation
Review does the same for the geological SSSIs. The Nature Conservancy Council has no choice about designation;
Section 28 of the 1981 Act requires all SSSIs to be designated, although the selection of
sites for notification also depends upon informed judgement as well as the rigid
application of objective criteria ( Nature Conservancy Council, 1989).